Smt.G.Vasanthakumari, President

     Complainant’s case is as follows.

    The complainant was running a Small Scale Industries Unit in the name and style of “Sudha Industrial Complex at Kottiyam which was mainly engaged in the manufacturing of Idali and milk cookers, that the said unit was started in the year 1991 and in 2000 it was declared as a sick unit, that the complainant had availed a loan of Rs.3, 00, 000/- from SBT, Kottiyam by mortgaging her 40 cents of land in Perumpuzha, that the loan fell in arrears when the industrial

(2)

unit declared as a sick unit, that the opposite party was the Manager, SBT, Kottiyam at the time of declaring the above industrial unit as sick unit and he interfered in the transactions of the complainant with a view to cause inconvenience in running the sick unit, that the District Industries Officer allowed a sum of Rs.1,00,000/- to revive the sick unit towards the start up expense and accordingly DD for the said amount was sent to the SBT, Kottiyam Branch in order to disburse it to the complainant and thereby to enable her to utilize the sum as a start up expense for the said sick unit. But the said amount was not disbursed to the complainant by the opposite party on the ground that the complainant has to clear the debts towards the bank, that finally the matter was reported to the Manager, DIC and the Manager requested the opposite party bank in writing on 28.04.2006, that thereafter the complainant again contacted the opposite party, but instead of disbursing the same he demanded to furnish a project report, that whileso complainant and her husband borrowed amount for higher interest from individuals and thereby they sustained huge loss and thereby financial condition became worse, that the complainant’s husband, who was a heart patient was happened to be arrested in a cheque case and thereby he was detained in jail and there he succumbed due to his acute decease, that the opposite party has no right to retain the amount sanctioned towards the start up expense by the DIC and the complainant and her family had sustained much mental agony, financial loss and heavy loss in alienating the immovable property for meager amount in order to clear of the liabilities and thus the act of the opposite party amounts to deficiency in service and it is an unfair trade practice and thereby she claims a sum of Rs.5,00,000/- towards compensation.

 The opposite party filed version contenting that the complaint is not maintainable either in law or on facts, that the true fact is that on 04.12.1993, the complainant approached the opposite party for credit facilities for working capital of the business of manufacturing Iddali cooker, Milk cooker, Sauce pan

(3)

and Puttu maker etc which was running in the name and style of Sudha Industrial Complex at Kottiyam, that the opposite party granted a cash credit to the limit of Rs.1,00,000/- on 05.03.1994 on the terms and conditions stipulated in the sanction letter dated 05.03.1994  that the complainant had executed all security documents in favour of the Bank, that towards the collateral security the complainant mortgaged immovable property viz., 8.90 Ares of property comprised in Re.Sy.No.516/08 and 8.99 Ares in Re.Sy.No.527/38 in Elampalloor village, that the complainant availed the loan amount of Rs.1,000,00/- and thereafter approached the Bank for enhancing the cash credit limit from Rs.1,00,000/- to Rs.1,50,000/- to develop the business and accordingly the cash credit was enhanced to the limit of Rs.1,50,000/- on 17.07.1995, that the complainant extended the charge on the  mortgaged property to this enhanced limit also, that the complainant again approached the bank for enhancing the cash credit limit from Rs.1,50,000/- to Rs.3,00,000/- and it was enhanced to Rs.3,00,000/- on 22.08.1997 and the complainant availed the amount from the bank, that the complainant extended the charge on the mortgaged property to this enhanced limit also, that the complainant executed a pledge letter in favour of the bank pledging the stock of the raw materials such as aluminium sheets, hand spoon etc stored in the business place of the complainant, that the complainant defaulted in re-payment and so the  bank filed O.S.No.179/2001 before the Sub – Court Kollam for realizing it, that the Court decreed the suit on 30.09.2002 in terms of the plaint by allowing the bank to recover an amount of Rs.4,86,855.95/- with 13% interest, that the bank filed Execution Petition No.107/2003 before the Sub-Court that the total amount due from the complainant at the time of the filing of the EP was Rs.6,55,966/-, that the bank has taken steps for realizing the amount by sale of the mortgaged properties and meanwhile the complainant sold some portion of the mortgaged property to one Radhamani, D/o.Kunjamma, Gopala Mandiram, Panayam Cherry, Thazhuthala

(4)

village, Kollam without the knowledge or  consent of the bank, that further she sold the entire movable property pledged to the bank and the sale proceeds were misappropriated, that on 19.06.2006 the complainant sent a complaint to the bank Head Office regarding rehabilitation of sick unit, that bank had sent a reply requesting her to suggest an acceptable compromise formula and  a revival package or otherwise the bank still continue the legal proceedings, but despite of the efforts and co-operation of the bank the party has not come forward with an acceptable proposal to settle the matter and in the meantime the unit of the complainant was sanctioned an amount of Rs.1,00,000/- by DIC, Kollam for start up expense in the rehabilitation scheme and the bank received a DD for the same from the DIC, that after waiting for some time the DD was returned to DIC, Kollam stating the fact that   (1) the party has not come forward with an acceptable proposal to settle the matter out of Court    (2) No acceptable revival package has been submitted to the bank for approval of the competent authority.   (3) The bank is proceeding with the legal action for the recovery of the dues as per the decree, that on 03.07.2006 the complainant had filed a petition before the District Legal Service Authority stating all the averments in the complaint and it was dismissed after the detail hearing of both parties, that the complainant submitted a revival package through the DIC, Kollam that in para 5 of the revival package it is mentioned that the liability with SBT will be settled under OTS, that in Letter No.AGM/IV/T/ADV/27 dated  29.05.2006 which is acknowledged by the party on 31.05.2006 and the bank had specifically  mentioned that the settlement cannot be possible for Rs.3,00,000/-, but the party has again given a letter on 24.08.2006 to the bank demanding that it should be settled for Rs.3,00,000/- for which the bank was not amenable , that her late husband N.Sudhakaran was the proprietor of Sudha Industries, Kottiyam which was engaged in the manufacture of Agarbathis, that to this unit also the bank had sanctioned a cash credit loan limit of Rs.2,00,000/- on 12.08.1999, that this loan limit is collaterally secured by equitable mortgage of

(5)

6.12 Ares of land with a residential building in Adichanalloor village in Re.Sy.No.116/22 registered in the name of his daughter Maya.S.R and Sudhakaran.N, that this unit also stopped functioning and the funds were misappropriated, that the bank filed suit for recovery of dues, that suit No.OS 180/2001 before the Sub-Court, Kollam was decreed in bank’s favour, that the Execution Petition was filed and property brought to sale by the Court, that the complainant had not remitted any amount decreed against her and she is a defaulter, that meanwhile she sold the mortgaged properties as well as the pledged properties without the knowledge of the bank and thereby she defraud the bank, that the complainant’s only intention was to drag the matter to delay the sale proceedings by the bank through Court, that the complainant has no intention to revive the unit or continue the business otherwise she would  not sell the movable in her business place, that the complainant defaulted the loan facility sanctioned to her and also cheated the bank by transferring the mortgaged property to third party without closing the loan, that the complainant had filed the same complaint before the Banking Ombudsman, Thiruvananthapuram and the same was closed on 29.09.2006, that a new Branch Manager took charge at Kottiyam Branch with effect from 09.05.2007, that even with the new Branch Manager, she was not co-operative for settlement of dues under OTS,  that her husband was taken custody in connection with a cheque case and not in connection with this case, that there is no willful latches or negligence on the part of the opposite party to attract the provisions of the Consumer Disputes Redressal Forum, that for recovery of dues the bank served notice under SARFAESI Act on 11.08.2007 and the complainant has settled the dues on 29.02.2008 through a compromise settlement acceptable to the bank and prayed to dismiss the complaint.

(6)

The points for consideration in this case are:

1. Whether the opposite party has any right to withheld Rs.1,00,000/- provided by DIC towards the start up expense of the sick unit of the complainant ?

2. Whether the opposite party has committed any unfair trade practice or deficiency in service while he was holding the post as a Branch Manager ?

3. Reliefs and costs ?

          The evidence in this case consists of the oral testimony of PW1 to 3, DW1 to DW3 and documentary evidence, Exhibits P1 to P5 and D1 to D10.

Points:-

          The complainant filed this complaint for getting a compensation of Rs.5,00,000/- from the opposite party alleging that Rs.1,00,000/- provided by DIC, Kollam as start up expense not released to her by the opposite party and as such she was not able to revive her small scale industry which was declared as a sick unit and due to that she along with her husband happened to borrow huge sum from others and in connection with a cheque case her husband who was a heart patient was happened to be arrested and detained in jail and there his ailment aggravated and he succumbed to that and her loss by that cannot be equated in terms of money and anyway she filed this case to redress her grievances.

(7)

In this case complainant was examined as PW1. She would swear before the Forum in tune with the allegations in the complaint. Nothing was brought out in her cross examination to discredit the witness. The Manager, District Industries Office, Kollam was examined as PW2. He would swear before the Forum that he sent two letters to SBT, Kottiyam to release the amount to the complainant which was provided for her as start up expense for her sick industrial unit. When a question was put to him by the opposite party that    Ð¢ —¡Ú¬Ä OTS ð¢ Ä‎£û·¡‎ý »¡±Ä©» ú£÷¡—¢ò¢©×õü óˆð¢‎ý ©ò¡ÿ ¨ˆ¡Ð¤´¤ó¡ü œ¡Ð¤¾¤ …¼ ›¢ð»»¤Ù©¿¡; He answered in the negative. •¹¨› ›¢ð»« ‚¿. Further down he would swear before the Forum that the opposite party has no connection with this transaction. Nothing was brought out in evidence by the opposite party to establish that the opposite party can retain the start up expense on the ground of non- repayment of loan amount.

          Senior Co operative Inspector, Kollam Handloom Industries Office was examined as PW3, He would swear before the Forum that start up expense ð¢ •›¤ó™¢µ Ĥˆ —¡Æ® ©ò¡Ã¤»¡ð¢ —Ü« óñ¤¼¢¿. —¡Æ® ˆ¤Ð¢ô㢉 ƒ¾óû •°®ö®×® ¨à¤¼Ä¢›¡ð¢ •Ä® Äк¤óð®´¡ü ˆù¢ð¢¿. Nothing was brought out in his cross examination also to discredit the witness. The opposite party who was examined as DW1 would swear before the Forum in terms of his contentions. He has stated that Ĥˆ ú¢ò£ö® ¨à¡Ä¢ñ¤¼Ä® ǹø¤¨Ð bank ¨ò dues clear ¨à¡Ä¢ñ¤¼Ä¤ ¨ˆ¡Ù¤«, compromise ›¤ óñ¡Ä¢ñ¤¼Ä¤ ¨ˆ¡Ù¤«, ú¢¨¨ó‎óý œ¡©´® ©ó軼® óô¬¨¸¶¢ñ¤¼Ä®  ©òð®×® ð¢ ›‎ýˆ¢ð¢ñ¤¼Ä¤ ¨ˆ¡Ù¤«, ©ˆö® œ¢üóò¢´¡Ä¢ñ¤¼ ö¡÷ñ¬·¢ò¤«,  •óöñ·¢‎‎ý •´ªÙ® óù¢ ‚Ðœ¡Ð® ›Ð·¡ü ö¡Ú¬Ä𢿡·Ä¢›¡ò¤»¡Ã®. ‎ Further down he would swear before the Forum that ©ˆö® ƒ¾ ö¡÷ñ¬·¢‎‎ý •´ªÙ® óù¢ ‚Ðœ¡Ð® ›Ð·¡ü œ¡Ð¢¿ …¼ ›¢ð»ó¬óö®˜ ƒÙ® ? Answer ‚¿. Again he

(8)

has admitted that there is no provision to settle bank loan, with Ext.P2  amount and therefore that was reported to DIC. Further down he has admitted that he was not aware of the provision or rule in respect of retaining the start up expense Rs.1,00, 000 which was allowed by DIC Kollam. He has also stated that óö®Ä¤ó¢¨üú ˆ¤úµ® Ÿ¡Š« ó¢×¤¨óÆ¢ò¤« —¡Æ¢›¤ ˆ¢¶¤ó¡›¤¾ »¤ù¤óü Ĥˆð¤«          —¡Æ¢›¤ ˆ¢¶£. It is in evidence that the DD which was received on 22.04.2006 returned to DIC on 01.07.2006. Even though he swear before the Forum that he has withheld the DD as per the direction from the Head Office there is no documentary evidence to substantiate the same. In Ext.D6 letter there is no whisper regarding any direction not to disburse the amount to the complainant. In Ext.D7 letter also there is no direction to withheld the draft but has given an advise to return the same since the complainant has not complied three conditions viz; the party has not come forward to settle the matter out of Court, no acceptable revival package has been submitted and proceedings are pending for recovery of dues. But taking the evidence as whole we can see that opposite party has no right to retain the said amount for the above purpose. Chief Manger (Inspection Mobile) Head Office, SBT who was examined as DW2 would swear before the Forum that ‡ñ¤ òÈ« ñ¥œ DIC ð¢‎ý ›¢¼¤« •›¤ó™¢µ ó¢óñ« •ú¢ð¡«.  Ĥˆð®´® —¡Æ¢¨üú ©ò¡Ã¤»¡ð¢ ð¡¨Ä¡ñ¤ —Ü󤻢¿. Further he would swear before the Forum that D6 ±œˆ¡ñ« »¡©›û´® …¨ÉÆ¢ò¤« ›¢û©Àô« ›‎ýˆ¢ð¢¶¤©Ù¡ ? ‚¿. (Answer) D7 ›¢ò¤« Т Ĥˆ ¨ˆ¡Ð´Ù …¼® ›¢û©Àô¢µ¢¶¢¿ ? ƒÙ® (Answ) †Ä® ó¬óö®˜ ±œˆ¡ñ»¡Ã®   Äк¤óð®´Ã¨»¼® œúð¤¼Ä® ? ›¢ð»ó¬óö®˜ …É¡¨Ã¼® …›¢´ú¢ð¢¿. So it is in evidence that DW2 also is not aware of the provision or Rule under which DW1 has withheld the draft. The Chief Manager of SBT, who was examined as DW3 also would swear before the Forum that the bank cannot retain the start up expense for the non re-payment of loan but had given a different version regarding retaining the same. So the evidence of DW2 and DW3 also are not helpful to the opposite party. It is also in evidence that later the DD was returned to DIC, Kollam. Even though opposite party has examined DW2 and DW3 he has failed to establish as to under which provision he can retain the

(9)

amount. He has also failed to bring to the notice of his superior officials regarding the direction of DIC as per Ext.P2. Apart from that the bank has realised the entire loan amount from the complainant. It follows that there is willful latches and negligence on the part of the opposite party in disbursing the amount and he has no right to retain the said amount for any other purpose. If the said amount was disbursed in time the complainant ought to have revived her sick unit and ought to have functioned the same and ought to have obtained some amount to discharge their debts slowly which  debts resulted in the dangerous situation of her husband involving in  cheque case ought to have avoided. Her case that the above all unfortunate incidents occured in her life because of the non release of the amount cannot be brushed aside. If follows that there is deficiency in service and any way compensation claimed is limited to Rs.3, 00,000/-.

          In the result, the complaint is allowed directing the opposite party to give Rs.3, 00,000/- as compensation to the complainant and Rs.1000/- towards the cost. The order is to be complied with within one month from the date of this order.

                                                          Dated this the 27^th day of December 2011.

G.Vasanthakumari         :Sd/-

R.Vijayakumar               :Sd/-

(10)

INDEX

List of witnesses for the complainant

PW1                               ------ K.L.Rajani

PW2                               ……  P.VijayanPillai

PW3                               ……..M.Shadudeen Sahir

List of documents for the complainant

P1                         ……Proceedings Order No.EI (2)/8913/99 dtd :16/05/2000

P2                         ……Letter dtd: 28/04/2006

P3                         ……Letter dtd: 07/08/07

P4                         ……Letter dtd: 17/05/06

P5                         ……Death Certificate dtd: 29/04/2007

List of witnesses for the opposite party

DW1                     …….Balakrishnan

DW2                     …… Sasi.C.Menon

DW3                     …….G.Vijayan

List of documents for the opposite party

D1                        …….Copy of Decree

D2                        …….Encumbrance certificate

D3                        …….Letter dtd:29/05/06

D4                        …….Letter dtd:12/06/06

D5                        …….Postal acknowledgment

D6                        …….Letter dtd:01/07/06

D7                        …….Letter of AGM dtd: 04/07/06

D8                        …….Project Work

D9                        …….Letter from applicant dtd: 24/08/06

D10                      …….Order of Ombudsman